HomeMy WebLinkAbout19-015 - E&F Recovery LLC - Cost Recovery for Spills and Accidents19-015
Council Approval N/A
COST RECOVERY AGREEMENT
This Cost Recovery Agreement ("Agreement") is made as of the date shown below and between the following parties:
E&F Recovery, LLC
P.O. Box 590
Gig Harbor, WA 98335
("EFR")
Tukwila Fire Department
444 Andover Park East
Tukwila, WA, 98188-7606
("Customer")
Effective Date: January 10, 2019
and is subject to EFR's Privacy Policy that can be found by visiting https:%/www.efrecovery.com/privacy.
In consideration of the mutual covenants and promises contained herein. the parties agree as follows:
1. DEFINITIONS. As used herein. the following terms shall have the following meanings. In additions, other terms are
defined elsewhere in the Agreement, in the context in which they arise.
1.1 "Liable Party" or "Liable Parties" means negligent parties or their insurer(s).
1.2 "Services" means, collectively, the services listed in Exhibit A attached hereto and incorporated herein by this
reference
1.3 "Total Claim Amount" means the total of all Customer charges for equipment, labor, consumables,
administrative costs, processing costs and other costs outlined, defined, and/or authorized by Customer's
jurisdictional law, code, resolution or ordinance, as set forth on Customer reimbursement cost schedule.
1.4 "Mobile Application" means a program developed by EFR to collection -scene incident information for use in
billing a claim.
1.5 "Device" means a compatible mobile telephone, tablet computer or on -board computers that Customer uses to
operate the Mobile Application.
1.6 "Executable Code" means the fully compiled version of a software program that can be executed by a
computer, mobile telephone or tablet computer and used by an end user without further compilation.
1.7 "Software" means the Mobile Application, plus any modified, updated or enhanced versions of programs that
EFR may provide to customer hereunder in Executable Code in its sole discretion from time to time.
1.8 "Documentation" means the user manuals provided to Customer along with the Software.
1.9 "Intellectual Property Rights" means all existing and future worldwide copyrights, trademarks, service marks,
trade secrets, patents, patent applications, moral rights, contract rights and other proprietary rights.
1.10 "Net Fees" means the total Processing Cost, Uncollected Claim Cost and any additional costs as defined in this
Agreement not recovered by EFR and remitted back to Customer within the Initial Term or Renewal Term.
2. SERVICES. Customer retains EFR as its billing contractor to perform the billing for services from any cost recovery
order as directed by Customer and as allowed by law, code, resolution or ordinance from a Liable Party or Liable
Parties). Customer also retains EFR to perform the Services in accordance with the terms of this Agreement. This
Agreement supersedes all prior agreements and understandings (whether written or oral) between the EFR and
Customer with respect to the subject matter hereof, and any such prior agreements are hereby terminated.
3. COMPENSATION TO EFR. For each claim that EFR provides any Services, Customer shall pay EFR the Processing
Cost or the Uncollected Claim Cost as defined in Exhibit B, plus any additional costs as defined in this Agreement. The
Net Fees shall not exceed Twenty Thousand Dollars (S20,000.00) in the Initial Term or any subsequent Renewal Term.
4. TERMS OF PAYMENT. Within 10 days after the end of each month, EFR shall send a statement setting forth in
reasonable detail the total amount billed and collected from all responsible parties for the prior month's transports. An
Invoice for the billing services performed will be included and is DUE UPON RECEIPT. EFR will deposit all collected
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rev. 12
EMS funds into an agreed upon bank account established and maintained by Customer. EFR shall not be responsible for
the payment of any billings that a responsible party/entity denies or refuses to pay. Customer's obligations hereunder
are absolute and unconditional and not subject to set-off. delay, counterclaim, or termination of performance. Customer
shall notify EFR of any disputed billings within fourteen (14) days of receipt, but such dispute shall not serve as a basis
for withholding of any sums due under this Agreement
5. TERM OF AGREEMENT. The term of this Agreement shall commence on the date set forth above and shall
continue until the first anniversary of such date (the "Initial Term"). Thereafter, the Term shall be automatically
renewed for succeeding terms of one year each (the "Renewal Term"), unless it is sooner terminated for cause pursuant
to Section 6 of this Agreement. Either party may elect to not renew this Agreement by informing the other, in writing,
of its intent not to renew; PROVIDED, HOWEVER, that such notice shall be delivered in accordance with this
Agreement no later than sixty (60) days prior to the anniversary date of the Agreement. If Customer has not submitted a
billable claim to EFR for a continuous twelve (12) month period, this Agreement will automatically terminate on the
last day of the Initial Term or the last day of the Renewal Term. While this Agreement is in effect, Customer shall not
retain any individual or entity other than EFR to perform the Services.
6. TERMINATION FOR BREACH. Except as otherwise set forth in this Agreement, either party may terminate this
Agreement if the other party materially breaches this Agreement and does not cure such material breach within thirty
(30) days after receiving written notice thereof from the non -breaching party; PROVIDED, HOWEVER, that such
notice shall describe the claimed breach in reasonable detail and afford the breaching party an opportunity to cure the
default prior to the expiration of such 30 day period. EFR may suspend the Services (or any portion thereof) upon
notice to Customer in the case of any breach or threatened breach by Customer. In addition to such termination right.
the non -breaching party shall have all rights and remedies available for such breach under applicable law/equity.
7. OBLIGATIONS UPON TERMINATION. Upon termination or expiration of this Agreement for any reason, the
following provisions shall apply.
7.1 Termination of Services and Obligations. Neither party shall be under any further obligation or liability
under this Agreement to the other from and after the date of termination, except as specifically set forth in this
Section. Furthermore, EFR will terminate all Services.
7.2 Obligation to Satisfy Payment of Fees. Customer understands and expressly acknowledges that termination
of this Agreement prior to the expiration of the Initial Term or the Renewal Term for any reason does not
suspend, discontinue, diminish, or in any way alter its continuing obligation to timely satisfy all invoices
reflecting Fees due to EFR through the final date of the Initial Term or Renewal Term and that such Fees will
be immediately due and payable
7.3 Copies of Data. Upon payment of all such Fees, and upon the request of Customer, EFR will provide
Customer with a single copy of all Customer's content on EFR's system as of the effective date of expiration or
termination in PDF format. Copies of data in non-PDF format will be made available upon the request by
Customer at EFR's then -current rates.
7.4 Return of Confidential Information. Customer agrees to deliver or return to EFR, at EFR's request at any
time or upon termination of this Agreement or as soon thereafter as possible, all documents, computer tapes and
disks, records, lists, data, drawings, prints, notes and written information (and all copies thereof) furnished by
EFR or prepared by EFR in the course of this Agreement and all other Confidential Information in Customer's
possession. If, for any reason, such document, material, database, equipment, or software cannot be returned,
Customer will destroy all the Confidential Information belonging to EFR and delete such Confidential
Information from any memory devices, then confirm to EFR, in writing, that said Confidential Information has
been destroyed. Customer will not be permitted to continue using the Confidential Information in any way after
the Termination Date.
7.5 Return of Equipment. All Hardware, if any, provided by EFR is and shall remain the property of EFR and
will be returned in like new condition except for normal wear and tear upon termination of this agreement.
7.6 Survival Provisions. The provisions of Section 1 Definitions, Section 13 Confidential Information, Section 15
Force Majeure, Section 16 Warranty Disclaimer, Section 17 Limitation of Liability, Section 18 Indemnification
and Section 19 General Provisions shall survive the expiration or termination of this Agreement.
8. COLLECTION PROCESS. EFR agrees that it shall use only lawful means to effect collections and will comply with
all provisions of the Fair Debt Collection Practices Act ("FDCPA") and applicable state statutes in connection with
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these collections. EFR bills the responsible party and/or their insurance company once a month up to three (3) months
or ninety (90) days. If the account has not been paid and depending on the selected billing options from Exhibit A by
day one hundred eighty (180) after submission of the claim, at Customer's discretion, EFR will either (a) cease
collection activity or (b) turn over the account to a collections agency to be specified by Customer, and such account
will be deemed uncollectible (the "Uncollectable Account"). EFR will make a "best effort" to collect funds from the
Liable Party. EFR shall not be responsible for the payment of any billings that are deemed an Uncollected Claim Cost.
9. COLLECTED FUNDS. EFR will deposit all collected funds into a bank account administered solely by EFR. All
recovered funds, less the Processing Costs, Uncollected Claim Costs, and/or Training Fees, as defined in Exhibit B, wif.
be submitted to Customer along with a detailed accounting of funded claims within thirty (30) days after the funds have
been received by EFR. Payments shall in favor of, and remitted to, the following party:
City of Tukwila - Finance
6200 Southcenter Blvd
Tukwila, WA 98188-2599
10. LICENSE GRANT.
10.1 License Grant. Subject to the terms and conditions of this Agreement, EFR hereby grants to Customer, only
for the Term (as defined in Section 5), a non-exclusive, non -transferable license to (a) install the Software only
for purposes of its internal use, and not to market and/or distribute the Software to any third party purposes of
resale; (b) make one copy of the Software solely for backup or archival purposes; and (c) copy and reproduce
any Documentation provided to Customer solely for the purposes of training Customer's staff.
10.2 License Restrictions; Reservation of Rights. Except as expressly permitted by this Agreement or except with
EFR's prior written consent, Customer will not, and will not permit any third party, to: (a) reproduce, modify,
adapt, alter. translate, or create derivative works from the Software or the Documentation; (b) merge the
Software with other software; (c) sublicense, distribute, sell. use for service bureau use. lease, rent, loan, or
otherwise transfer the Software or the Documentation to any third party; (d) reverse engineer, decompile,
disassemble, or otherwise attempt to derive the Source Code for the Software, except and only to the extent that
such activity is expressly permitted by applicable law notwithstanding this limitation; (e) remove, alter, cover or
obfuscate any copyright notices or other proprietary rights notices included in the Software; or (f) otherwise use
or copy the Software. The Software and Documentation and all worldwide Intellectual Property Rights therein,
are the exclusive property of EFR and its suppliers. All rights not expressly granted to EFR in this Agreement
are reserved by EFR.
10.3 No Restriction or Exclusivity. During the Term hereof, EFR may distribute, market, sell, or act as an agent or
representative of any developer, publisher, or manufacturer, of online services or products that are functionally
comparable or intended, by applicable marketing and promotional programs directed to such services or
products, to compete directly with the Software.
11. DATA & REPORTING. Customer will make available to EFR, for use in performance of services under this
Agreement, all available reports, studies or any other materials in its possession that Customer deems of use to EFR.
All materials furnished by Customer will not be disclosed to any party, other than as required under the scope of the
Agreement, without Customer's prior written approval. EFR shall provide Customer with status reports as set forth in
Exhibit "A" and other reports as mutually agreed.
12. INDEPENDENT CONTRACTOR.
12.1 Status. EFR is and shall at all times remain an independent contractor of Customer.
12.2 Employees. EFR shall retain full control over the employment, direction, compensation and discharge of all
persons employed by or assisting in the performance of service by EFR. EFR shall be fully responsible for all
matters relating to payment of employees, including compliance with Social Security, withholding tax and all
other laws and regulations governing such matters. EFR shall be responsible for its own acts and those of its
agents and employees during the term of this Agreement.
12.3 Binding of Customer. EFR shall not incur or have the power to incur any debt, obligation or liability for or on
behalf of Customer, or bind Customer in any manner, except as to matters specifically delegated in writing by
Customer.
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12.4 Claims. Customer shall have no claim to the software, computer programs, other technology and/or work
product developed/used by EFR in its performance of this Agreement. It is understood and agreed that
Customer may use EFR proprietary software programs in providing the services set forth in this Agreement.
Customer agrees that it shall not acquire any proprietary rights to such programs by virtue of this Agreement.
12.5 Benefits. Unless otherwise expressly authorized by Customer, EFR will not participate in or receive any of the
benefits which Customer extends to its employees, including, without limitation, vacation pay, sick leave and
medical insurance. EFR agrees to waive all claims to such benefits.
12.6 Taxes, Etc. EFR will be solely responsible for payment of all income taxes, self-employment taxes and other
items due with respect to EFR's income hereunder. Except as provided otherwise in Exhibit A, EFR will be
responsible for payment of any sums due to any persons hired by EFR to assist in the performance of the
Services.
12.7 Insurance. EFR shall procure and maintain in full force throughout the duration of this Agreement
professional liability insurance with a minimum coverage of S 1,000,000 per claim and S3,000,000
aggregate. Contractor shall provide evidence of such coverage in a manner and form acceptable to the City in
the City's sole discretion. Cancellation of the required insurance shall automatically result in termination of this
Agreement.
13. CONFIDENTIAL INFORMATION
13.1 Disclosure of Confidential Information. Each party (the "Disclosing Party") may from time to time disclose
to the other party (the "Recipient") certain information regarding the business of the Disclosing Party and its
suppliers. including technical, marketing, financial, employee, planning, and other confidential or proprietary
information that is marked or identified as confidential, or disclosed under circumstances that would lead a
reasonable person to believe such information is confidential ("Confidential Information"). The Recipient will
not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this
Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or
contractors of the Recipient who have a need to know such Confidential Information for purposes of this
Agreement and who are under a duty of confidentiality no less restrictive than the Recipient's duty hereunder.
The Recipient will protect the Disclosing Party's Confidential Information from unauthorized use, access, or
disclosure in the same manner as the Recipient protects its own confidential or proprietary information of a
similar nature and with no less than reasonable care. The Recipient will comply with any applicable state law,
including the Public Records Act.
13.2 EFR Confidential Information. The business practices including, but not limited to, financial information,
staffing patterns, H1PAA protected information, business relationships, the Services and System, including
without limitation any routines, subroutines, directories, tools, programs, or any other technology included
therein. and all other business practices shall be considered EFR's Confidential Information.
13.3 Customer Confidential information. The business practices such as financial information, staffing patterns,
client numbers, call center operations, HIPAA protected information, transport volumes, business relationships
and all other business practices shall be considered Customer's Confidential Information.
13.4 Exceptions. The Recipient's obligations under this Section with respect to any Confidential Information of the
Disclosing Party will terminate if such information: (a) was already known to the Recipient at the time of
disclosure by the Disclosing Party; (b) was disclosed to the Recipient by a third party who had the right to make
such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Recipient has become.
generally available to the public; or (d) was independently developed by the Recipient without access to, or use
of, the Disclosing Party's Confidential Information. In addition, the Recipient will be allowed to disclose
Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by
the Disclosing Party; (ii) necessary for the Recipient to enforce its rights under this Agreement in connection
with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative
body; provided that the Recipient notifies the Disclosing Party of such required disclosure promptly and in
writing and cooperates with the Disclosing Party, at the Disclosing Party's request and expense, in any lawful
action to contest or limit the scope of such required disclosure.
13.5 Authority to Disclose Confidential Information. In making any disclosure to EFR of private patient
information, you will comply with all applicable state and federal law regarding protected health care
information. In making any disclosure to you of private patient information. EFR will comply with all
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applicable state and federal law regarding protected health care information as agreed to by way of a separately
executed Business Associates Agreement (BAA).
14. NOTICES. Either party may notice the other by means of (a) electronic mail to the e-mail address on record, or (b) by
written communication sent by nationally recognized overnight delivery service or first class mail to the address shown
below, or (c) by letter sent by confirmed facsimile to EFR at the fax number shown below. Such notice shall be deemed
to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or
pre -paid post) or twelve (12) hours after sending (if sent by email or fax). Notices will not be effective unless sent in
accordance with the above requirements.
Notices to EFR: Notices to Customer:
E&F Recovery, LLC
P.O. Box 590
Gig Harbor, WA 98335
Fax: (253) 853-1340
Tukwila Fire Department
444 Andover Park East
Tukwila, WA, 98188-7606
(206) 575-2475
15. FORCE MAJEURE. Except for the obligation to pay for the Services, neither party shall be liable for delays in its
performance, or failures to perform, hereunder due to strikes, riots, war, fire, acts of God, labor disputes, delays caused
by the other party, weather, inability to secure labor or materials, revocation, suspension, denial or modifications of any
necessary permit, license or approval or other matters beyond the reasonable control of the affected party as long as
such party is taking steps to resume performance.
16. WARRANTY DISCLAIMER. EXCEPT AS MAY BE PROVIDED IN ANY SEPARATE WRITTEN
AGREEMENTS SIGNED BY THE PARTIES, THE SERVICES ARE PROVIDED "AS -IS", AND NEITHER WE
NOR ANY OF OUR RESPECTIVE LICENSORS MAKE ANY REPRESENTATION OR WARRANTY WITH
RESPECT TO THE SERVICES. EFR AND THEIR RESPECTIVE LICENSORS SPECIFICALLY DISCLAIM, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED,
RELATING TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, COMPLETENESS, TIMELINESS, CORRECTNESS, NON -INFRINGEMENT, OR
FITNESS FOR ANY PARTICULAR PURPOSE. EFR AND THEIR LICENSORS DO NOT REPRESENT OR
WARRANT THAT THE SERVICES: (A) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR -FREE OR
OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) WILL
MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (C) WILL BE FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS. THESE DISCLAIMERS CONSTITUTE AN ESSENTIAL PART OF THIS
AGREEMENT. IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN
ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE PERIOD REQUIRED BY APPLICABLE
LAW. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED
WARRANTY MAY LAST. SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
17. LIMITATION OF LIABILITY. IN NO EVENT SHALL EFR AND/OR THEIR LICENSORS BE LIABLE TO
ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR
OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, COSTS, DAMAGES, AND
CLAIMS ARISING OUT OF OR RELATED TO DATA SECURITY INCIDENT(S), LOSS OF REVENUE,
PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED
WITH THE SERVICES, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE THE
SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY
INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF EFR OR
THEIR LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN
NO EVENT WILL EFR'S AGGREGATE LIABILITY RELATED TO THIS AGREEMENT EXCEED THE
AMOUNTS ACTUALLY PAID TO EFR BY CUSTOMER IN THE 12 MONTH PERIOD IMMEDIATELY
PRECEDING THE DATE THE CLAIM AROSE.
18. INDEMNIFICATION.
18.1 BY EFR TO CUSTOMER. EFR agrees to defend and hold Customer, its officers, directors, shareholders,
employees and agents harmless from any and all losses, costs, expenses (including reasonable attorney fees),
causes of action, causes of suit, claims, demands, damages, awards and other liabilities which any such
indemnitee may incur or which may be asserted against it as a result of EFR's collections activity under this
agreement; provided, however, that Customer warrants and guarantees that the information furnished to EFR is
accurate and complies with all state and federal laws.
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18.2 BY EFR TO CUSTOMER. Customer agrees defend and hold EFR, its officers, directors, shareholders,
employees and agents harmless from any and all losses, costs, expenses (including reasonable attorney fees),
causes of action, causes of suit, claims, demands, damages, awards and other liabilities which any such
indemnitee may incur or which may be asserted against it related to all claims submitted to EFR, the accuracy
of the information furnished to EFR and the use of the Software; provided, however. that EFR warrants and
guarantees that the billing services provided on behalf of Customer comply with industry -standard best
practices and comply with all state and federal laws.
19. NONINTERFERENCE. During this Agreement and for two (2) years thereafter, neither party will, without the
express consent of the other party: (a) hire or use the services of any person who was an employee or independent
contractor of either party while this Agreement is in effect, or encourage or counsel any such person to leave either
party's employ; (b) provide any competing services to or solicit any competing business from any person or entity who
was a customer of either party, or to whom either party has submitted any business proposal, while this Agreement is in
effect; or (c) be an officer, director, employee or agent of, or own any interest in, or provide any advice or assistance to
any person or entity that engages in any of the foregoing. The foregoing will not apply to any person or client once s/he
or it has ceased to provide or receive services to or from either party for a period of one (I) year or longer, nor will it be
deemed to prohibit either party from accepting employment with any customer of either party, provided such
employment does not relate to any product or service provided by either party to such customer (or to the subject matter
of such product or service).
20. GENERAL PROVISIONS.
20.1 Governing Law and Jurisdiction. This Agreement shall be construed under the laws of the State of
Washington, without regard to its principles of conflicts of law. In the event any litigation arises out of this
Agreement, the parties agree that such case shall be heard exclusively in the federal and state courts in Pierce
County, Washington. Customer waives an objection on the basis of inconvenient forum or otherwise.
20.2 Relationship. This Agreement does not make either party the employee, franchisee, agent or legal
representative of the other for any purpose whatsoever. Neither party is granted any right or authority to assume
or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. In
fulfilling its obligations pursuant to this Agreement each party shall be acting as an independent contractor.
20.3 Entire Agreement. This Agreement, along with the Exhibits attached and incorporated in this Agreement,
constitutes the final, complete, and exclusive understanding between the parties, and replaces and supersedes all
previous oral or written agreements, understandings, or arrangements between the parties with respect to the
subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed
by an authorized representative of each party to this Agreement.
20.4 Amendment. This Agreement shall not be deemed or construed to be modified, amended, rescinded. cancelled
or waived, in whole or in part, except by written amendment signed by an authorized representative of each
party to this agreement party hereto.
20.5 Assignment of Agreement. Customer shall not assign or otherwise transfer any of its rights or obligations
under this Agreement without the prior written consent of EFR. Any prohibited assignment shall be null and
void. EFR may transfer its rights and obligations hereunder to any company or other legal entity that is
controlled by, controls or is under common control with EFR. EFR may retain subcontractors to perform the
Services.
20.6 Severability. In the event that any of the terms of this Agreement are in conflict with any applicable rule of law
or statutory provision or otherwise unenforceable under applicable laws or regulations of any government or
subdivision thereof, such terms shall be deemed stricken from this Agreement, but such invalidity or
unenforceability shall not invalidate any of the other terms of this Agreement and this Agreement shall continue
in force, unless the invalidity or unenforceability of any such provisions hereof does substantial violence to, or
where the invalid or unenforceable provisions comprise an integral part of, or are otherwise inseparable from,
the remainder of this Agreement.
20.7 Counterparts. This Agreement shall be executed in two or more counterparts, and each such counterpart shall
be deemed an original hereof. Any translation of this Agreement into any other language shall be for
convenience purposes only and shall not be binding on any party.
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20.8 Delay or Omission Not Waiver. No delay or failure by either party to take any action or assert any right
hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the
circumstances giving rise to such right.
20.9 United Nations Convention of Contracts. The application the United Nations Convention of Contracts for the
International Sale of Goods is expressly excluded
20.10 Controlling Language. This Agreement is written in English (US), and English (US) is its controlling
language
20.11 Capitalized Terms. Capitalized terms used in this Agreement will have the meanings given to them in this
Agreement. Any capitalized terms not defined in this Agreement will have their plain English (US) meanings.
20.12 Waiver of Breach. The waiver of a breach of any provision of this Agreement will not operate or be
interpreted as a waiver of any other or subsequent breach
20.13 No Third Party Beneficiaries. No entities not a party to this Agreement shall be deemed third party
beneficiaries hereunder.
20.14 Binding Effect. The signatories to this Agreement each represent that each has the Authority to bind such party
to the terms and conditions set forth herein. This Agreement shall inure to the benefit of and shall be binding on
the successors and permitted assigns of the parties.
20.15 Construction. This Agreement shall not be construed for or against any Party, regardless of its drafter.
20.16 Headings. Headings
the provisions.
n this Agreement are for convenience only and shall not be used to interpret or construe
THIS AGREEMENT is executed as of the day and year first above written.
E&F RECOVERY, LLC
Signature
Name Steven Kaufman
Title CEO
Date
Page 7
January 10, 2019
CUSTOMER
Signature
Name
Title
Date
Signature
Name
Title
Date
Jay C,Wittwer
Fire Chief
Mayor
4 . 0,3 Z. �
rev. 12
EXHIBIT A
DESCRIPTION OF EF RECOVERY'S SERVICES, BILLING OPTIONS AND COSTS
"BASIC PLAN"
SERVICES. The following represents the complete scope of services to be provided by Customer and EFR in
connection with this Agreement.
• Customer will obtain all reports and information about an incident and enter a claim in its entirety into Internet -
based software created by EFR. Alternatively, customer may use the Mobile Application or the EFR Billing Module
of My Fire Rules to automate claim entry. Customer shall be solely responsible to determine the Total Claim
Amount.
• EFR will review each claim to ensure it contains all information necessary to submit the claim to the Liable Party.
EFR will not amend, correct, adjust or modify the Total Claim Amount without the Customer's written approval.
Customer agrees to respond to EFR requests for incomplete claim information or action requests at a minimum of
once per week.
• Customer will review claim, make any corrections and approve claim using Internet -based EFR software.
• EFR will submit completed claim to the Liable Party and seek reimbursement of the Total Claim Amount per the
contact method(s) specified in this Exhibit A. If a settlement offer is made by the Liable Party to pay less than the
Total Claim Amount, Customer will determine, at its sole discretion, whether to accept the settlement offer.
• EFR will submit funds to Customer pursuant to the terms of this Agreement.
2. PROCESSING COST. Customer hereby agrees to pay EFR the Processing Cost, as defined in Exhibit B. The
Processing Cost will be subtracted from the claim payment(s) received by EFR on behalf of Customer. Customer
acknowledges that if it accepts a settlement offer on a claim, EFR remains entitled to collect the full Processing Cost, or
a portion thereof, at its sole option.
3. UNCOLLECTED CLAIM COST. Customer hereby agrees to pay EFR the Uncollected Claim Cost, as defined in
Exhibit B. The Uncollected Claim Cost will be subtracted from the claim payment(s) received by EFR on behalf of
Customer. Reasons for considering a claim as uncollectible include, but are not limited to:
• Legitimate denial from an insurance company
• A decision by Customer not to bill the Liable party or to write off the claim to charity
• An exhaustion of all collection options
• No liable party or a liability dispute
• A non -responsive Liable Party who cannot be contacted via telephone pursuant to Customer's policy
• No known Liable Party address
4. TRAINING FEE. Customer hereby agrees to pay EFR the Training Fee, as defined in Exhibit B. The Training Fee
will be subtracted from the claim payment(s) received by EFR on behalf of Customer.
5. CONDITIONS. The following conditions apply to all claims processed by EFR on behalf of Customer:
• A jurisdictional law, code, resolution or ordinance in Customer's area of service must be in place.
• Customer will designate a single point of contact that will respond to EFR inquiries in a timely manner
6. BILLING OPTIONS. EFR will recover funds based on the collection option selected below. These options and their
associated fees may be amended from time to time by written notice pursuant to the terns of this Agreement.
Bill insurance companies and soft bill all liable parties
❑ Bill insurance companies and out of area residents only
❑ Provide full collection effort for all claims
7. CUSTOMER COLLECTION AGENCY. Customer hereby specifies the collection agency listed below (the
"Collection Agency") to act on its behalf and authorizes EFR to release information related to uncollected claims as
requested by the Collection Agency.
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Agency Name
Address
Contact Name
Contact Phone
Contact Email
8. CLAIM REPORT COSTS. By checking the box below, Customer hereby agrees to add the Claim Report cost, as
defined in Exhibit B, to the Processing Cost.
Add the Claim Report cost to the Total Claim Amount
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EXHIBIT B
DEFINITIONS AND COSTS
"Processing Cost" means fifty dollars ($50.00) or seventeen percent (l7%) of the Total Claim Amount or the
settlement offer accepted by Customer on a claim, whichever is greater, plus any Claim Report costs, if applicable.
2. "Uncollected Claim Cost" means as twenty-five dollars (S25.00) for a claim deemed by Customer, at its sole
discretion, as uncollectable from a Liable Party or the Liable Party's insurance carrier.
3. "Training Fee" means a one-time charge of two -hundred and fifty dollars (S250.00) for training Customer on all
procedures, software, mobile applications and other aspects of the program.
4. "Claim Report" means thirty-five dollars ($35.00) for a law enforcement report, a report from a city, county, state, or
federal agency, or reports from other sources to help it resolve new fault party, an invalid Liable Party address,
incomplete sections of the claim, or other information related to the claim.
Page 10 rev. 12
Tukwila Fire Department
444 Andover Park East
Tukwila, WA, 98188-7606
To Whom It May Concern:
Effective January 10, 2019, Tukwila Fire Department signed an agreement with EF Recovery, LLC
authorizing them to recover expenses incurred from vehicle accident and hazardous materials response
and mitigation by this department.
This letter serves as acknowledgement of such authorization to all responsible parties, their insurance
companies and all government and law enforcement agencies and directs them to provide information
and reports as requested by EF Recovery on our behalf.
Respectfully,
Jay Wittwer
Fire Chief
Tukwila Fire Department
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement ("Agreement") is made as of the date shown below and between the following parties:
E&F Recovery, LLC
P.O. Box 590
Gig Harbor, WA 98335
("EFR")
Agreement Date:
Tukwila Fire Depaitiuent
444 Andover Park East
Tukwila, WA, 98188-7606
(the "Customer")
January 10, 2019 ("Effective Date")
This Business Associate Agreement ("Agreement") between EFR and Customer is executed to ensure that EFR will
appropriately safeguard protected health information ("PHI") that is created, received, maintained, or transmitted on behalf of
Customer in compliance with the applicable provisions of Public Law 104-191 of August 21, 1996, known as the Health
Insurance Portability and Accountability Act of 1996, Subtitle F - Administrative Simplification, Sections 261, et seq., as
amended ("HIPAA"), and with Public Law 111-5 of February 17, 2009, known as the American Recovery and Reinvestment
Act of 2009, Title XII, Subtitle D - Privacy, Sections 13400, et seq., the Health Information Technology and Clinical Health
Act, as amended (the "HITECH Act").
A. GENERAL PROVISIONS
1. Meaning of Terms. The terms used in this Agreement shall have the same meaning as those terms defined in
HIPAA.
2. Regulatory References. Any reference in this Agreement to a regulatory section means the section currently in effect
or as amended.
3. Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with HIPAA.
B. OBLIGATIONS OF THE BUSINESS ASSOCIATE. EFR agrees that it will:
I. Not use or further disclose PHI other than as permitted or required by this Agreement or as required by law.
2. Use appropriate safeguards and comply, where applicable, with the HIPAA Security Rule with respect to electronic
protected health information ("e-PHI") and implement appropriate physical, technical and administrative safeguards to
prevent use or disclosure of PHI other than as provided for by this Agreement.
3. Report to Customer any use or disclosure of PHI not provided for by this Agreement of which it becomes aware,
including any security incident (as defined in the HIPAA Security Rule) and any breaches of unsecured PHI as required by
45 CFR § 164.410. Breaches of unsecured PHI shall be reported to Customer without unreasonable delay but in no case later
than 60 days after discovery of the breach.
4. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), ensure that any subcontractors that create, receive,
maintain, or transmit PHI on behalf of EFR agree to the same restrictions, conditions, and requirements that apply to EFR
with respect to such infornation.
5. Make PHI in a designated record set available to Customer and to an individual who has a right of access in a
manner that satisfies Customer's obligations to provide access to PHI in accordance with 45 CFR § 164.524 within 30 days of
a request.
6. Make any amendment(s) to PHI in a designated record set as directed by Custo
necessary to satisfy Customer's obligations under 45 CFR § 164.526.
er. o
ake other measures
7. Maintain and make available information required to provide an accounting of disclosures to Customer or an
individual who has a right to an accounting within 60 days and as necessary to satisfy Customer's obligations under 45 CFR
§ 164.528.
8. To the extent that EFR is to carry out any of Customer's obligations under the HIPAA Privacy Rule, EFR shall
comply with the requirements of the Privacy Rule that apply to Customer when it carries out that obligation.
Business Associate Agreement — Page 1 rev. 12
9. Make its internal practices, books, and records relating to the use and disclosure of PHI received from, or created or
received by EFR on behalf of Customer, available to the Secretary of the Department of Health and Human Services for
purposes of determining EFR and Customer's compliance with HIPAA and the HITECH Act.
10. Restrict the use or disclosure of PHI if Customer notifies EFR of any restriction on the use or disclosure of PHI that
Customer has agreed to or is required to abide by under 45 CFR §164.522.
1 1. If Customer is subject to the Red Flags Rule (found at 16 CFR §681.1 et seq.), EFR agrees to assist Customer in
complying with its Red Flags Rule obligations by: (a) implementing policies and procedures to detect relevant Red Flags (as
defined under 16 C.F.R. §681.2); (b) taking all steps necessary to comply with the policies and procedures of Customer's
Identity Theft Prevention Program; (c) ensuring that any agent or third party who performs services on its behalf in
connection with covered accounts of Customer agrees to implement reasonable policies and procedures designed to detect,
prevent, and mitigate the risk of identity theft; and (d) alerting Customer of any Red Flag incident (as defined by the Red
Flag Rules) of which it becomes aware, the steps it has taken to mitigate any potential harm that may have occurred, and
provide a report to Customer of any threat of identity theft as a result of the incident.
C. PERMITTED USES AND DISCLOSURES BY BUSINESS ASSOCIATE. The specific uses and disclosures of
PHI that may be made by EFR on behalf of Customer include:
1. The preparation of invoices to patients, carriers, insurers and others responsible for payment or reimbursement of the
services provided by Customer to its patients.
2. Preparation of reminder notices and documents pertaining to collections of overdue accounts.
3. The submission of supporting documentation to carriers, insurers and other payers to substantiate the healthcare
services provided by Customer to its patients or to appeal denials of payment for the same.
4. Other uses or disclosures of PHI as permitted by HIPAA necessary to perform the services that EFR has been
engaged to perform on behalf of Customer.
D. TERM AND TERMINATION
1. The Term of this Agreement shall be effective as of the Effective Date and shall terminate on the date covered ent
terminates for cause as authorized in paragraph 2 of this Section.
2. Customer may terminate this Agreement if Customer determines that EFR has violated a material term of the
Agreement and EFR has been apprised of the violation in writing and has not cured the violation within thirty (30) days of
said written notice.
3. If either party knows of a pattern of activity or practice of the other party that constitutes a material breach or
violation of the other parry's obligations under this Agreement, that party shall take reasonable steps to cure the breach or end
the violation, as applicable, and, if such steps are unsuccessful, terminate the Agreement if feasible.
4. Upon termination of this Agreement. EFR shall return to Customer or destroy all PHI received from Customer, or
created, maintained, or received by EFR on behalf of Customer that EFR still maintains in any
Business Associate Agreement — Page 2 rev. 12
form. EFR shall retain no copies of the PHI. If return or destruction is infeasible, the protections of this
Agreement will extend to such PHI.
THIS AGREEMENT is executed as of the day and year first above written.
E&F RECOVERY, LLC
Signature
Name Steven Kaufman
Title
CEO
Date January 10, 2019
CUSTOMER
Signature
V
Name Jay C. Wit
Title
Date
Signature
Name
Title
Date
Fire Chief
Business Associate Agreement — Page 3 rev. 12